Steps to consider for setting up Financial Agreement
Prior to the right to set up Binding Financial Agreements (BFAs) was extended to same-sex and de facto relationships, when such a relationship had split up, each party would have had to ready themselves for some long-winded and monotonous lawsuits through the Supreme Court. Thank goodness, this has now all been improved with the introduction of section 90UD of the Family Law Act 1975 which specifically allows people in de facto relationships to agree upon what they consider to be a reasonable division of property and financial resources once the relationship has broken down. Effectively, this now places de facto agreements in the same category as is already enjoyed by husbands and wives. It means that same-sex relationships are apportioned with the exact same rights to heterosexual couples and this will be viewed as a welcome move by many gay rights groups that have been involved and campaigning throughout these issues.
How Does One Go About Preparing A BFA In These Circumstances? If a de facto, or same-sex relationship has split up irretrievably, s.90UD of the 1975 Act sets out that the following techniques will have to be observed for a court to determine and apply a binding financial agreement. These are as follows: They would need to ensure that each party obtain professional and qualified legal advice. This is vital and it should help to be sure that each party’s unique situation is analyzed and legally commented upon. If gross unfairness can be identified within the agreement as it stands, the legal advisor will point this out to the relevant partner and they will then only go ahead and sign when they understand specifically what they are agreeing to and/or possibly compromising.
A certificate must be received from the applicable legal professional which will attest to the point that this requirement has been convinced. It would then need to be added in as an ‘annex’ to the main written legal document which will constitute the BFA. The BFA will have to specify the level of any relevant spousal maintenance to be provided. It will has to be signed by both people and a copy will be retained by each. Provided all of the steps have been taken above, the court should not scrutinise the BFA to guarantee that it is just and equitable. The court would only tend to set a BFA aside if there were fundamental flaws with the documents (e.g. the BFA had been created in a fraudulent manner). It is also imperative that you note that a person can only get into a BFA if they are not already party to such an agreement with someone else.
Swifter Conclusion at the end of a Relationship: This type of post nuptial agreement should help to ensure that any financial matters are dealt with far more smoothly than they may preferably be. Given, some time would be needed on both sides to conceive the binding financial agreement, but once a settlement is agreed upon, the BFA will offer a far quicker decision to the question of who gets what. Needless to say, to a large level, by the end of any relationship and at a period when communication between both sides may not be as manageable as it once was, a lot will rely on how fast an agreement can be completed. On the other hand, it would probably end up being more prudent and cost efficient for the parties to fix the asset and financial issues in this way.
Whichever actions the members of a de facto relationship elect to take when things have separated, the fact remains that Australian law now provides them with these alternatives. Gone are the days where there was only limited avenues that could be went after in order to fix such issues. Such de facto agreements now exist to realise a swifter conclusion to the division of property and money.
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